Messrs Tata Chemicals Limited vs State Of West Bengal & Ors
2023 Latest Caselaw 1699 Cal

Form No.J(2)


                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE
Present :

The Hon'ble Justice Raja Basu Chowdhury

                            WPA 1596 of 2018

                        Messrs Tata Chemicals Limited.
                                     Vs.
                         State of West Bengal & Ors.


For the petitioner           :      Mr. Ranjay De


For the respondent no.4         :   Mr. Salil Kumar Maity,

Ms. Jayatri Basu Ray

Heard on : 10.01.2023.

Judgment on                 :       15.03.2023.



Raja Basu Chowdhury, J:

1. The present writ application has been filed, inter alia,

challenging the order dated 20th September, 2017, passed by

the learned Third Industrial Tribunal, West Bengal, whereby

the petitioner has been added as an additional party in case

no. VIII-44 of 2015 arising out of an order of reference dated

16th November, 2015 made by the appropriate Government. It,

however, appears that the learned Third Industrial Tribunal,

West Bengal has been made a party in this proceedings. Since

the learned Third Industrial Tribunal could not have been

made a party, let the name of the learned Third Industrial

Tribunal as respondent no.1 be deleted from the cause title of

the application: Leave is granted to the learned advocate for

the petitioner to carry out necessary correction in the cause

title and the prayer portion of the writ application.

2. At the interim stage when the matter had come up for

hearing, this Court by order dated 27th September, 2022 while

taking note of the submissions of the respective parties, inter

alia, on the point of maintainability raised by the respondent

no.3 was pleased to entertain the present writ application by

overruling the objection on the point of maintainability, and

while calling for the records, had stayed all further

proceedings in case no. VIII-44/2015 pending before the Third

Industrial Tribunal, West Bengal. Since then, records have

been produced.

3. Despite service the respondent no.2 did not present itself for

hearing and remained unrepresented.

4. As would appear from the record the petitioner claims to be a

Public Limited Company incorporated under the provisions of

Companies Act, 1956. The petitioner has from time to time

entered into various agreements with service providers with

the object of outsourcing certain activities which are not

perennial in nature. The respondent no.2 happens to be one

of the service providers who has been engaged for loading and

unloading of materials. The respondent no.3 is an employee of

the respondent no.2 who has since been superannuated on 1st

April, 2014.

5. Notwithstanding the petitioner not having any direct

contractual relationship with the respondent no.3, the

petitioner was served with a notice dated 22nd November,

2016 issued by the Third Industrial Tribunal enclosing

therewith, an application filed by the respondent no.2. By

such notice, the petitioner was called upon to show-cause

why the petitioner shall not be brought on record in

connection with the case pending before the Tribunal. The

petitioner has since ascertained that pursuant to a dispute

raised by the respondent no.3 against the respondent no.2,

the appropriate Government by an order dated 16th November,

2015 had referred the dispute raised by the respondent no.3

to the Third Industrial Tribunal, West Bengal for adjudication

by framing the following issues:

(i) Whether the superannuation of the workman, Sri

Jamal Khan with effect from 1st April, 2014 is

justified?

(ii) What relief, is he entitled to?

6. It is, in connection with the said proceedings that a summon

in Form D-3 (in terms of Rule 20D (2) proviso) of the West

Bengal Industrial Disputes Rules, 1958 (hereinafter referred

to as the said Rules), bearing memo no. 3960LT dated 22nd

November, 2016 had been issued.

7. The petitioner had duly responded to the aforesaid summons

and had duly objected to the aforesaid notice and by filing an

appropriate objection had clarified that the petitioner was

neither a necessary nor a proper party, in relation to

adjudication of the dispute, inter se between the respondent

no.2 and respondent no.3. The petitioner did not have any

contractual relationship with the respondent no.3 and that no

employee employer relationship subsists. The Tribunal,

however, by overruling the objection raised by the petitioner,

by an order dated 20th September, 2017 has added the

petitioner, as a principal employer of the respondent no.3 as

an additional party in the proceedings.

8. Challenging the aforesaid order, the present writ application

has been filed.

9. Mr. De, learned advocate representing the petitioner,

submitted that the Tribunal despite taking note of the fact

that the petitioner had no contractual relationship with the

respondent no.3 ordered the petitioner, to be added as an

additional party, in its capacity as principal employer, to such

proceedings, inter alia, on the ground that the presence of the

petitioner may be necessary for effectually and completely

adjudicating upon and to settle all the questions and issues

involved in the dispute. He reiterated that the aforesaid order

passed by the Tribunal is perverse and is based on complete

non-application of mind.

10. He says that the Tribunal did not appropriately take note

the provisions of Rule 20D of the said Rules and by adding the

petitioner as party has occasioned complete failure of justice.

The petitioner is neither a necessary nor a proper party and

there is, admittedly, no contractual relationship between the

petitioner and the respondent no.3.

11. He says that an employee-employer relationship forms the

basic foundation of an industrial dispute as defined in Section

2(k) of the Industrial Disputes Act, 1947 (hereinafter referred

to as the said Act). The power to refer such disputes for

adjudication is, thus, limited to disputes between the

employers and employers, or between employers and

workmen, or between workmen and workmen, which is

connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any

persons: the same does not and cannot include a workman

and a third party and for that sake the principal employer.

12. According to Mr. De, respondent no.1 committed

jurisdictional error in adding the petitioner as party to the

proceedings and this Court has the jurisdiction and authority

to correct such an error, in exercise of its high prerogative writ

jurisdiction under Article 226 of the Constitution of India.

13. Per contra, Mr. Maity, learned advocate appearing for the

respondent no.3, submits that the application for addition of

party has not been filed by his client. The said application for

addition of party had been filed by the respondent no.2, who

is his employer. He says that unless the principal employer is

brought on record, retrenchment compensation will not be

available. He, however, questioned the jurisdiction and

authority of this Court to entertain the present writ

application.

14. I have heard the learned advocates appearing for the

respective parties and have considered the materials on

record.

15. I find that an industrial dispute has been raised by the

respondent no.3 against the respondent no.2 and the

appropriate Government by an order dated 16th November,

2015 has referred the same to the Third Industrial Tribunal

for adjudication. It is in connection with such proceedings

that the respondent no.2 has sought for addition of the

petitioner as a party to such proceeding. I find that unlike the

general law, the Industrial Disputes Act, provides for

adjudication of disputes which are enumerated disputes, inter

se between a particular class of person or persons which is

also enumerated in Section 2k of the said Act. For the sake of

brevity, the Section 2k is extracted hereunder:

"Section 2k - "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"

16. It would, however, appear that the application of the

respondent no.2 has been filed in terms of Rule 20D of the

said Rules. For appropriately appreciating the provisions of

Rule 20D of the said Rules the same is extracted herein below:

"20D. Addition of issues or parties to the proceedings. -

(1) After the parties have filed their statements, the Industrial Tribunal/Labour Court may fix a date for framing, if necessary, issues relating to and arising out of the point or points in dispute, as referred, and matters incidental thereto, as well as additional or subsidiary issues, not enlarging in any way the scope of the points referred for adjudication on the merits, nor adding to their number but required for dealing with extrinsic contentions raised by the parties about the reference and for its hearing. (2) The Industrial Tribunal/Labour Court may at any stage of the proceedings, either upon or without the application of any party and on such terms as may appear to the Industrial Tribunal/Labour Court just,

order that the name of any party who ought to have been joined in the reference or whose presence before the Industrial Tribunal/Labour Court may be necessary in order to enable the Industrial Tribunal/Labour Court effectually and completely to adjudicate upon and settle all questions involved in the dispute, be brought on the record : Provided that no such party shall be brought on the record without being given an opportunity to show cause by proper notice why he should not be brought on the record. The notice to show cause shall be in Form D-3.

(3) The Industrial Tribunal/Labour Court shall have power, when circumstances so require, to bring on record in the place and instead of a party to the reference, a party or parties to which the right or interest of the former has passed in the course of the proceeding before it."

17. As would appear from the Rule 20D(2) of the said Rules

that the Industrial Tribunal/Labour Court has the authority

to order that the name of any party who ought to have been

joined in the reference and whose presence before the

Industrial Tribunal/Labour Court may be necessary in order

to enable the Industrial Tribunal/Labour Court to effectively

and completely adjudicate upon and settle all questions

involved in the dispute, be brought on the record.

18. Again, in Rule 20D(3) of the said Rules, additional powers

have been conferred on the Industrial Tribunal/Labour Court

to bring on record in place and instead of a party to the

reference, a party or parties to which the right or interest of

the former has passed in course of proceeding before it.

19. A perusal of the aforesaid Rule would, thus, demonstrate

that the Industrial Tribunal/Labour Court has the jurisdiction

and authority to add a party provided such party is a

necessary party or that the right of a former party has passed

in course of the proceeding before it.

20. A combined reading of Rule 20D(1), 20D(2) and 20D(3),

would show that although the Tribunal has the power to

adjudicate not only the issues which are referred to itself for

adjudication but also can adjudicate matters incidental

thereto, as also additional or subsidiary issues, not enlarging

any way, the scope of the points referred for adjudication on

the merits, nor adding to their number but required for

dealing with extrinsic contentions raised by the parties about

the reference and for its hearing and in this context the

Tribunal can also when it appears just, order the name of any

party who ought to have been joined in the reference and

whose presence before the Industrial Tribunal/Labour Court

may be necessary in order to enable the Industrial

Tribunal/Labour Court to effectually and completely

adjudicate upon and settle all questions involved in the

dispute, to be brought on record, inter alia, including party, or

parties, to which the right or interest of the former has passed

in course of the proceeding before it.

21. Thus, although the aforesaid power exists in the Tribunal,

the Tribunal can only consider in addition to dispute specified

in the order of reference, matters incidental to the said

dispute and that naturally suggests, certain obvious

limitations on the implied power of the Tribunal to add parties

to the reference before it, while purporting to exercise its

powers under Rule 20D of the said Rules.

22. It necessarily follows that if it appears to the Industrial

Tribunal that party named in the order of reference, does not

completely or adequately represent the interest either of the

employer or of the employee it may direct the joining of other

persons necessary to represent such interest. Similarly, if the

unions specified in the reference does not represent all the

employees, it may be open to the Tribunal to add such other

unions as it may deem necessary. It is, thus, always a must

that the addition of party is necessary to make the

adjudication itself effective and enforceable. It is, in the light

of the aforesaid provisions that the power of the Tribunal to

add parties must be held to be limited.

23. I find that the petitioner has been added by holding the

petitioner to be a principal employer. The question whether

the petitioner is the principal employer and qualifies as an

employer within the meaning of Section 2g of the said Act is,

however, a substantial dispute. If the appropriate Government

desired that such question should be determined, a reference

to that effect could have been brought. The aforesaid question

cannot be considered as an incidental matter especially when

the appropriate Government did not think it fit to refer such

disputes for adjudication.

24. It, however, does not appear from the order impugned that

the petitioner had been added as a party, only for the purpose

of enforcing the award against the respondent no.2. As such,

Tribunal cannot be permitted to enlarge the scope of the

reference by adding the petitioner as a party, in its capacity as

a principal employer when the order of reference does not

provide for the same.

25. I find that the order passed by the learned Judge suffers

from jurisdictional error. This Court has already at the interim

stage held that where there is a jurisdictional error committed

by the Tribunal or a quasi-judicial body, such an error is

amenable to writ jurisdiction and can be corrected by this

Court by issuing a writ of certiorari. A jurisdictional error may

be from failure to observe the limits of its jurisdiction or may

arise from procedural irregularity adopted by the Tribunal,

after validly assuming jurisdiction. It may also be on account

of violation of principles of natural justice. There may be other

instances where writ of certiorari can be issued. In the instant

case, it is apparent from the records that the dispute as

referred to the Tribunal by the appropriate Government is

between the respondent nos. 2 and 3 and relates to employee-

employer relationship. In a dispute limited to an employee-

employer relationship, which does not also concern a dispute

under Contract Labour (Regulation and Abolition) Act 1970,

the petitioner has been added as a party. Such a decision, in

my view, is an error of exercise of jurisdiction not vested in

him. Although the Tribunal at the first instance, had the

jurisdiction to decide upon the dispute between the

respondent no.2 and respondent no.3, the Tribunal had

exceeded his jurisdiction, while adding the petitioner as an

additional party, in its capacity as principal employer,

notwithstanding the petitioner having no contractual

relationship (employee-employer) with the respondent no.3.

26. In view thereof, the order of addition of the petitioner as an

additional party is set aside.

27. The records be sent back immediately, to the Third

Industrial Tribunal, West Bengal, for adjudication of the

disputes referred to the Tribunal by the appropriate

Government vide its order dated 16th November, 2015.

28. The writ application being WPA 1596 of 2018 is

accordingly disposed of.

29. There shall be no order as to costs.

30. Urgent Photostat certified copy of this order, if applied for,

be given to the parties on priority basis upon completion of

requisite formalities.

(Raja Basu Chowdhury, J.) sb